OFFICE

OF THE ATTORNEY GENERAL

STATE OF

ILLINOIS

November

8,

2004

RECEIVED

CLERK’S OFFICE

NOV

1

132004

STATE OF ILLINOIS

Pollution Control Board

The Honorable

Dorothy Gunn

Illinois Pollution Control

Board

State of Illinois Center

100 West

Randolph

Chicago,

Illinois 60601

Re:

People

v.

Jersey Sanitation Corporation

PCB

No. 97-2

Dear Clerk Gunn:

Enclosed for filing

please

find

the original

and ten

copies of a NOTICE

OF

FILING

and

COMPLAINANT’S

REPLY

POST-HEARING

BRIEF

in

regard

to

the

above-captioned

matter.

Pleasefile the original and return a file-stamped copy of the document to our office in the enclosed,

self-addressed,

stamped

envelope.

Thank you for your cooperation

and consideration.

Very truly yours,

-~

Jane

E.

McBride

Environmental Bureau

500 South

Second Street

Springfield,

Illinois 62706

(217)

782-9031

500

South

Second

Street, Springfield,

Illinois

62706

•

(217)

782-1090

•

TTY:

(217)785-2771

•

Fax:

(217)

782-7046

100

West

Randolph

Street,

Chic~o.

Illinois

60601

•

(312)

814-3000

•

Tl’Y:

(312) 814-3374

•

Fax:

(312)

814-3806

001

1~r

\)6n

(~irl~nd*.

Illinois

(~3001

•

hIM)

579—9401)

•

“I’):

(hIM)

S79—6403

•

Fax; (618)

529—6416

Lisa Madigan

ATTORNEY GENERAL

JEM/pp

Enclosures

---

RECEIVED

CLERK’S

OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

NOV

102004

PEOPLE OF THE STATE OF ILLINOIS,

)

STATE OF ILLINOIS

‘

Pollution

Control Board

Complainant,

V.

)

PCB NO.

97-2

)

(Enforcement)

JERSEY

SANITATION

CORPORATION,

)

an

Respondent.

NOTICE

OF FILING

To:

Stephen

F.

Hedinger

Attorney at Law

2601

South

Fifth Steet

Springfield,

IL 62703

PLEASE TAKE

NOTICE that

on this date

I

mailed for filing with

the Clerk of the Pollution

Control

Board

of the State of Illinois, COMPLAINANT’S REPLY POST-HEARING

BRIEF, copies

of which are attached

hereto and

herewith served

upon

you.

Respectfully submitted,

PEOPLE OF THE

STATE OF

ILLINOIS

LISA MADIGAN,

Attorney General of the

State

of Illinois

MATTHEW J.

DUNN, Chief

Environmental

Enforcement/Asbestos

Litigation Division

BY:

~

~

‘~

JANE

E.

McBRIDE

Assistant Attorney General

Environmental Bureau

500 South

Second Street

Springfield,

Illinois 62706

217/782-9031

Dated:

November

8,

2004

---

I

hereby certify

that

I

did

on

November

8,

2004,

send

by

First

Class

Mail,

with

postage

thereon fully prepaid,

by depositing

in a

United

States

Post Office Box a true and correct copy of

the

following

instruments

entitled

NOTICE

OF

FILING

and

COMPLAINANT’S

REPLY

POST-

HEARING BRIEF

To:

Mr.

Stephen Hedinger

Hedinger Law Office

2601

South Fifth

Street

Springfield,

Illinois 62703

and the original

and ten copies by First Class Mail with postage thereon fully

prepaid of the same

foregoing

instrument(s):

To:

Dorothy Gunn, Clerk

Illinois Pollution

Control

Board

State of Illinois

Center

Suite

11-500

100 West Randolph

10

Chicago,

Illinois 60601

A copy was also sent by

First Class

Mail with

postage thereon fully

prepaid

To:

Carol Webb

Hearing

Officer

Pollution

Control

Board

1021

N.

Grand

Avenue East

Springfield,

Illinois 62794

~

,)ai1~E.

McBride

Assistant Attorney General

This filing is submitted

on

recycled paper

---

RECEIVED

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

CLERK’S OFFICE

PEOPLE OF THE STATE

OF ILLINOIS,

)

NOV

~

02004

STATE OF ILLI1”~JOIS

Complainant,

)

PQlI~t~~~

Control Board

vs.

)

PCB

No. 97-2

JERSEY SANITATION

CORPORATION,

)

an

COMPLAINANT’S REPLY POST-HEARING

BRIEF

NOW

COMES

Complainant,

PEOPLE OF THE

STATE OF ILLINOIS

(hereinafter, the

“Complainant”)

by LISA MADIGAN,

Attorney General of the

State

of Illinois,

and at the request

of the ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY (“Illinois EPA”),

by and through

its

attorneys, files

its reply post-hearing brief in this matter.

Introduction

In

its prayer for relief

in this matter,

Complainant seeks a finding and

order from the

Board which will

require Respondent Jersey Landfill to address the fact that groundwater

sampling

results

indicate exceedences

of the State’s groundwater quality standards

in the down

gradient wells at

the subject landfill.

The groundwater monitoring well identified

as an

upgradient well under the

Respondent’s current monitoring

plan, does

not show exceedences.

Respondent insists

the upgradient well

in question is

monitoring

upgradient groundwater.

Thus,

based on the sampling

results,

the

landfill

is impacting the groundwater and additional

analysis

is merited.

Existing

permit conditions require the

landfill,

in the words

of the

Respondent’s own

groundwater expert

Kenneth Liss,

given that the landfill’s sampling

results

indicating

exceedences of the groundwater standards,

to conduct

more frequent sampling

and pertorm

a

r

trend analysis of groundwater sample

results

obtained

at the landfill.

Tr. for January

13,

2004

hearing

date at 40 and 41.

The permit further requires that

should the trend analysis show that

---

the groundwater does indeed

appear to

be impacted,

Respondent should

retain a

professional

engineering firm to

develop future actions/or plans for subsequent Illinois

EPA approval.

Pursuant to

testimony provided

by

Respondent’s witness Andy

Rathsack, such further action

may include

a groundwater assessment.

Respondent’s witness’ testimony was

supported

by

the testimony of Complainant’s witnesses

Karen

Nelson and Joyce

Munie, who

both testified

that based on their professional judgment

and the requirements of the current permit, a trend

analysis and

groundwater assessment should

be conducted

at the landfill given that the State’s

groundwater quality standards have

been exceeded

at the landfill.

Citation to the referenced

testimony

is included

in Complainant’s original

post-hearing brief.

Further,

based

on the existence of a long-Unanswered question

in

this matter as to the

appropriateness of the landfill’s monitoring well Gi 03 as an

upgradient well,

Complainant seeks

an order from the Board that will require

Respondent to

conduct an

analysis and

evaluation of

its

current

monitoring

plan

and the appropriateness of G103

as

an upgradient well.

This portion

of the Complainant’s

prayer for relief is strongly supported

by the many

exhibits that have been

admitted

in the record

of this matter.

For years, the landfill’s permit

has

required

an evaluation

of the monitoring

plan due

to the fact the

Illinois

EPA field

staff and

permit writers questioned

the appropriateness

of G103 as

an

upgradient well.

Respondent has repeatedly failed to

comply.

Just as Respondent failed to

comply with groundwater analysis, evaluation

and

assessment requirements

in

its previous

permits, currently,

Respondent has failed

to comply

with the requirement

in

its existing permit that it conduct a trend

analysis and

any further

appropriate corrective action.

Its own

expert,

Kenneth Liss,

testified

that given the sample

results currently available for the landfill,

pursuant to the landfill’s

existing permit,

it should

conduct a trend

analysis.

Respondent has contended,

since

it first filed

an

appeal of

its

1999

permit in the year 2000,

that the provision

Mr.

Liss

indicated

requires a trend

analysis

is

indeed

2

---

a viable part of

its

permit.

However, Respondent has continued

to fail to comply with

this very

provision.

Respondent claims that at the time

it bought the landfill the corporation

had

no

equipment and

insufficient money to close the landfill.

It had to

operate the landfill

to be able to

close

it.

Respondent purchased the entire 200 acres entailed

in the landfill

property.

Over

Complainant’s objections, the hearing

officer allowed a significant amount of testimony, elicited

from Pamela Shourd,

regarding the landfill

and

neighborhood

of the landfill

prior to the time she

and her co-investors took ownership and control of the property

and

long before the

initial date

of any violation

alleged in

this matter.

Respondent has

included with

its

response brief a copy of the neighboring

landfill’s

entry

in the Non-Hazardous

Solid Waste

Management and

Landfill Capacity 2002 Annual

Report

October 2003.

It indicates that

RCS,

Inc.

is

a subsidiary of Allied

Industries,

Inc.,

a large

successful landfill

company.

Obviously,

if Respondent is attempting

to enter a

new exhibit

at

this

late date in

the proceeding,

the context of the exhibit

must be

relevant.

This landfill

is

indeed

the landfill

identified

in

the

record

as the

landfill developed

next door,

on property that

was

part of the parcel sold to Jersey Sanitation

Corporation by

Ralph Johnson.

Obviously,

the

shareholders had sufficient

resources to

develop and/or sell, or otherwise transfer,

a new

landfill

on a joining

parcel of the original

property to a sophisticated

buyer, Allied

Industries,

Inc.,

who could afford to

pay them, or otherwise compensate them,

for the landfill and

their landfill

business.

Given

that Jersey Sanitation

Landfill was closing, the

new

landfill came with

a ready

clientele.

It is interesting to

note that on

page 7 of

its response

brief, Respondent Jersey

Sanitation

makes

the point that its not

in

~jjy

landfill

business anymore.

(Emphasis

added).

Such a statement supports the testimony and

documentation in

the record

of this proceeding

that the Respondent had

multiple landfills

at one time.

Respondent’s

claims of financial

inability, losses

and lack

of funds

to adequately fund

3

---

compliance measures and meet its

financial assurance requirements are

hard

to swallow given

the complete history of the development of the 200 acre

piece of property,

and the

intertwined

business

interests of Jersey Sanitation

Corporation and

RCS,

lnc./Allied

Industries.

In

its response

brief, Respondent objected to all argument contained

within

Complainant’s brief

regarding RCS,

Inc.

However,

now,

it seeks itself to enter a whole new

exhibit concerning the very subject of its

objection.

Every argument contained

within

Complainant’s original brief regarding

RCS is based

on documentation

or testimony contained

within the record. The exhibit attached

to

Respondent’s brief

is offered without proper

foundation and

without allowing

Complainant to cross.

Respondent objected at hearing to

testimony

relevant to RCS,

Tr.

at 365,

366, and 372,

and yet

it now defies

its own

objection and

offers an

exhibit on

point with

the te~timony

it originally objected

to.

The phenomenon of the neighboring

landfill

is

relevant;

because as stated

by Charlie

King

at

hearing,

it wasn’t until

RCS took over operation of Jersey Sanitation

Landfill

in

1995 that

Jersey Sanitation

Landfill showed

significant improvement.

So,

in

essence,

Respondent Jersey

Sanitation Corporation allowed the Jersey Sanitation

Landfill to

remain woefully out

of

compliance, with

leachate flows existing on the property as

a water

pollution hazard, at times

entering Sandy

Creek, gas seeps emanating

from the

landfill,

and

gas

and

leachate impacting

the groundwater

at the landfill, while the RCS Landfill was

being

developed.

Once RCS was

developed

and operating,

by

1995,

the

RCS operator began to

bring Jersey into compliance.

But from

1989,

the year the

Respondent purchased the Jersey Sanitation

Landfill,

until

1995,

the Jersey Sanitation

landfill existed

on the

land with exposed

refuse, Ieachate flows and

gas

problems.

Even

after 1995,

landfill

inspections

indicate sporadic problems with

leachate and

gas.

Jersey Sanitation Corporation failed

to exercise diligence

with other compliance

problems as well.

Respondent Jersey Sanitation took nearly nine years to obtain siting

4

---

approval for the overheight condition

at the landfill.

The violation

of elevation

and contours

was

first cited

in

1991.

Why did

it take Respondent nine years to

address this violation?

Throughout the duration

of Jersey Sanitation Corporation’s

ownership and

control of the

Jersey Sanitation

Landfill, it has failed

to

conduct required groundwater assessments

and

has

failed,

in any

manner, to address

the exceedence of groundwater standards at the

site.

The

impact to the groundwater was

predicted

to occur if proper controls and

management

were not

exercised at

the landfill.

These

predictions were first made

in

1973.

The report containing the

predictions was included

in a

1989 Jersey Sanitation

Corporation

submittal to

the

Illinois

EPA.

Respondent knew that leachate, gas and

surface water controls were

paramount to the

protection of the groundwater, yet

it failed to

install

and

maintain

the needed controls.

In

this action, Complainant also

seeks

an order that would

require

Respondent to

comply with the financial

assurance provisions of

its permit.

Respondent was tO submit

revised

cost

estimates by March

15, 2001.

To this day it has failed to

submit cost estimates that were

due

by March

15, 2001.

Respondent’s Concessions

Respondent has

conceded

to the violations alleged

in Counts

II,

Ill,

V and VI.

It has

conceded that it was

in violation

of

its

permit conditions concerning the landfill’s

elevation and

contours

during the time alleged

in

Count

IV of the second amended

complaint.

It has

conceded

that

it was in

violation of the permit requirement that required

it to

maintain surface

water ditches on the north

and south

sides of the landfill for the duration

alleged

in

Count IV of

the second

amended complaint.

Respondent has conceded that

it was in violation

of

permit

requirements concerning

hours

of operation,

as alleged

in Count IV of the second amended

complaint.

Respondent

has conceded

that it was

in violation of Permit No.

1992-350-SF

conditions A.3

and A.4, as

alleged

in Count

IV,

and

it

has conceded

that

it was in

violation of

special condition

B.6 of

Permit No.

1992-350-SF as

alleged

in Count

IV.

5

---

The Count

II violations

discussed

in

Section

I of Complainant’s post-hearing brief

concerned seven

separate instances of violation.

The violation

of leachate flowing off-site

into

Sandy Creek was

a repeat violation,

Instances of leachate flowing

beyond

the confines of the

landfill were

observed

three times after the

initial violation in January

1991.

Leachate

pop-outs

were cited twice.

Evidence

presented

at hearing

clearly showed

that

Respondent was

provided

copies of all

inspection

reports

prior to

the subsequent inspection.

Respondent had notice

of

each alleged violation and

an opportunity to correct it prior to the next inspection.

The Count

II

violations discussed

in Section

J

of the Complainant’s post hearing

brief

represent six instances of four violations

each.

Thus,

five of the observations

constitute repeat

violations

of the four infractions.

The violation alleged in

Count

Ill

and discussed in

Section

K of the Complainant’s post-

hearing

brief is refuse in

flowing water at

the landfill

on February

17,

1994.

The observation

represented violations

of Section

12(a) and

(d) of the Act,

415

ILCS

5/12(a) and (d),

as well as

Section

21 (o)(1)

of the Act, 415 ILCS 5/21 (o)(1).

Thus, this count concerns three first

time

violations

of refuse

in water.

The conceded

Count IV violations includ~

elevation

and contour violations existing at

the

site for 8 years and 253 days; failure to

maintain

north and

south

surface water drainage

ditches at the site that existed

at the site

2,736 days;

and

a violation

of the landfill’s hours of

operation

permit provision

documented

at the time of one

inspection.

Respondent was

in

violation of Permit No.

1992-350-SF

permit conditions A.3 and A.4 for

1,734 days.

Respondent

was

in violation

of special

condition

B.6 of Permit

No. 1992-350-SP for 2,130

days.

Respondent conceded

to the violations alleged in

Count V.

In

Count

V,

Complainant

alleged four inspections

at which instances of failure to

place a compacted

layer of six inches of

cover on

exposed

refuse

at the end

of the operating day were observed.

These observations

represent four instances of violation

of Section 21(o)(5) of the Act, 415

ILCS 5/21(o)(5) and

35

6

---

Ill.

Adm.

Code 807.305.

Respondent has conceded

to

the financial assurance violations alleged

in Count V.

Respondent failed to maintain financial assurance in

an amount equal

to

its current cost

estimate for closure and

post-closure, and thus violated

its Permit 1992-350-SF Condition

B-3,

thereby violating

Section 21(d) and

Section

21.1(a) of the Act, 415 ILCS

5/21(d) and

21.1(a),

and

35

III.

Adm.

Code 807.601, from February

10,

1993 through November

5,

1998,

a total of

2,093 days.

In

Complainant’s original

brief,

in Section

M.1,

last two paragraphs,

Condition

B.3

and

B.4 were confused.

Condition

B.3

is the requirement that financial assurance be fully

funded.

Condition

B.4

is the requirement that the landfill

provide documentation of

its financial

assurance funding within

90 days of the date

of the permit.

Respondent was

in violation of

Section

B.4 of

its

permit for a total of 164 days.

Thereby it violated Section

21(d)

and

Section

21.1(a) of the Act, 415

ILCS 5/21(d) and

21.1(a), and

35

III.

Adm.

Code 807.603 for

164 days.

Respondent has conceded

to violation of

Condition

B.5 of Permit 1992-350-SF, the

requirement to submit

biennial

cost estimates, from March

16,

1993 until

October 5,

1999, a

total of 2,393

days.

Respondent is again

out

of compliance with its

permit requirement

to

submit biennial cost estimates.

It has

been out of compliance

with this

provision from

March

15,

2001

to

the present.

The conceded violations

represent many

days of both first and

repeat and

ongoing

violations.

In that

the statutory amount for the first instance of violation

is $50,000 and the

amount for an

ongoing violation

is $10,000 per day, the Complainant is certainly justified,

on the

basis of the conceded

violations alone,

in

its

request for a $65,000

penalty.

Further,

the conceded

violations serve as

a basis for the Complainant’s prayer for

attorney fees.

The record

in this proceeding

clearly shows that the Respondent received

notice

of the violations

and

had an

opportunity to

correct the violations,

In

many instances,

it failed to

do so.

In

some instances,

it failed to

do so for years.

The ongoing

violations were

knowing and

7

---

willful violations, of the Act, pertinent regulations and applicable

permit conditions.

Disputed Violations

Respondent did not concede the following violations:

Count

I

Groundwater Water Pollution

Count

IV

Requirement to

conform groundwater monitoring wells and

facHities to

the approved

monitoring

plan.

Failure to provide a narrative demonstration that

its water

monitoring

program is capable of determining groundwater

quality flowing

onto and

unaffected

by the landfill,

assess

current contribution

of the existing

landfill

on groundwater

quality and

determine

if release to groundwater is

-

occurring, by April

15,

1991.,

--

-

•

Failure to obtain

a supplemental

permit to conduct

landscape waste

compost operations.

Failure to

comply with

Item

10, Attachment A,

Permit

No.

1992-350-SF.

Failure to comply with

Permit No.

1 992-350-SP

Attachment A,

Special Conditions 5(a), 6(b),

8,

16, 20,

21

and

22.

Violation of Section 21(d)

and

22.17, 415

ILCS 5/21(d)

and

22.17,

and

35

III. Adm.

Code 807.524(a) with

respect to

Permit No.

1999-209-SF.

Count VII

Closure Violations

Count VIII

Open

Burning

Violations

Count

I

Groundwater

The first portion of Respondent’s

discussion

on groundwater issues consists of

its

claim

that the Complainant

is reaching

back to permit

conditions struck in the appeal of Permit

1999-

209-SF.

Complainant

has provided

testimony regarding two general propositions.

The first is

that given the factual conditions

at the

landfill,

that is,

sample

results

showing exceedences

of

groundwater standards

and

results showing an

increase in exceedences

over time,

both the

8

---

Complainant’s

and

Respondent’s groundwater experts

recommend performance

of a trend

analysis and,

potentially,

a groundwater assessment.

These measures are standard

practices

given sample results that indicate exceedence of the standards,

and

results that show an

increase in the level of exceedences.

The experts

recommend that these practices

be

implemented at Jersey Sanitation

Landfill.

Further, the experts agree that the existing permit

calls for the implementation of such practices.

Citations to

the testimony referenced

here

is

provided

in detail

in Sections

B,

C,

D,

E,

F

and

G of Complainant’s

original post-hearing

brief.

Second, exhibits entered

in the

record

of this matter, as set forth and

described

in

Section

F

of Complainant’s brief,

set out the historical

record

of the

long

unanswered

question

as to whether the G103

monitoring well

at the

landfill

is an appropriate upgradient well.

This

discussion traces the history of permit requirements

that existed

in

Permit No.

1992-350-SF as

well as Permit No

1999-209-SF.

These exhibits clearly show that the permit conditions were

not written

in a vacuum.

They were not written

to merely mirror the Section

811

requirements.

They were written by permit reviewers who were indeed

informed

by

the field

personnel’s

observations

regarding this

landfill, and

the documentation,

submitted

by Jersey Sanitation

Corporation itself,

generated at the time of the development of this

landfill

that described the

topography and geology and the need for leadhate, gas and drainage

controls

to protect the

groundwater.

In

the early

1990s, the permit

reviewers acknowledged Inspector

Rich Johnson’s

questions

regarding the appropriateness of G103, and their own

identical questions, and wrote

conditions

meant to

address these concerns.

The same held true

in the

mid

1990s, when the

permit

reviewers acknowledged the fact

of exceedences at

the landfill and the fact of the

long

unanswered

question

regarding the appropriateness of G103

that appeared

in historical

documentation,

as well as

the field’s

1994 groundwater investigation, and

required

assessments and

analysis be

performed of the landfill’s groundwater monitoring

plan

and

the

sample

results

that showed continuing exceedences of the standards.

Citations and

quotations

9

---

from the exhibits

and testimony referenced

in the paragraph are provided

in detail in

Sections

F

and

G of Complainant’s original

post-hearing

brief.

The geologists and engineers that were called as witnesses

in this matter testified to

the

practices

and

recommendations that they considered standard to

respond to the exceedences

of groundwater standards evident at

the Jersey Sanitation

Landfill.

The fact that these

practices

might resemble

the conditions

that existed

in Jersey’s

permit,

and that are required

of

Fart

811

landfills,

is not at

all

surprising.

These are the very practices that engineers and

geologists customarily utilize to

address groundwater issues

—

issues that are

evidenced

by

exceedence of the State’s groundwater quality standards.

Respondent claims that the

Illinois

EPA permit writers

approved the landfill’s monitoring

plan, and

thus somehow gave its blessing to the configuration of the monitoring wells

as they

existed

on the

site.

The permit writers

did

indeed issue permits that included the landfill’s

proposed

monitoring

plan,

but they did so

with conditions.

The landfill was to

implement its

plan

in compliance with

these

additional conditions.

Throughout

the duration of Permit

1992-

350-SF, and

upon issuance

of Permit 1999-209-SF

and the appeal of that permit, the

landfill

failed to

comply with

permit conditions.

If the landfill would

have

complied, the exceedences of

standards would

have been

addressed by

an

assessment, which most likely would

have

included

a trend

analysis, and the question

of the appropriateness

of the

G103 well would

have

been answered.

In the appeal

of the

1999-209-SF

permit,

the

Board

struck

groundwater conditions

pertaining

to assessments

and statistical

analysis.

The pertinent decisions concluded that the

existing language

contained within the groundwater section of the landfill’s permit application

constituted a sufficient groundwater plan to

meet the requirements

of the Fart 807 regulations.

Testimony elicited

at hearing,

as

set forth

above,

indicated

that the Respondent’s

own

groundwater experts

believe

the existing permit language

requires,

given the exceedences

10

---

documented

at the landfill, the performance of a

trend analysis,

Ti.

for January 13,

2004

hearing

date at

40 and

41,

and also,

potentially, performance of a groundwater assessment.

Ti.

398-399.

In

its reply

brief, Respondent claims that Complainant is arguing

a “mini-syllogism” that

Respondent depicts as the following “Complainant appears to

argue that because of certain

section

12

alleged violations, remedial strategies

must be employed, which,

miraculously,

appear to

be exactly the same as the

IEFA’s stricken groundwater conditions.”

Its true.

Except the remedial strategies

may not be exactly the same as

the stricken

conditions.

The remedial

strategies requested

are those

consistent with the language of the

landfill’s current

permit.

Count

I

of the second amended

complaint consists of allegations that

groundwater at the landfill exceeds groundwater standards.

It also contains allegations that

these exceedences

and the non-compliant conditions at the

landfill

have

resulted in violations of

Section

12(a) and

12(d) of the Act, 415 ILCS 5/12(a)

and

(d).

Complainant,

in

its

prayer,

is (1)

asking the

Board

for a finding

that the groundwater is exceeding

standards and, based on this

finding,

(2) issue an

order requiring

Respondent to comply with

its permit by

adhering

to the

language in

its permit that requires it to

perform a trend analysis and then

retain

a professional

engineering firm to consider the next step.

Complainant has

elicited testimony from both its

own

groundwater experts and

the Respondent’s experts regarding their opinions as

to what the

existing

language

requires.

This testimony exists

in the transcripts

of this proceeding

and

has

been presented

and argued

in

Complainant’s original

post-hearing

brief.

Respondent claims that Complainant has

not met

its

burden of proof regarding its

allegations

of Section

12(a) and

12(d) violations

relevant to

groundwater.

Respondent attempts

to discredit Complainant’s groundwater witness

Karen

Nelson

in

a discussion

on page

13 of

its

response

brief, but then turns around

and

relies on

her testimony as a

basis

for his

claims

regarding evidence

presented pertinent to the water pollution violations.

Respondent cannot

11

---

have it both ways.

Ms.

Nelson’s credentials

have been entered

in the record as Complainant’s

Exhibit 13.

Her list of credentials

more than

speaks for itself.

Respondent argues that the fact

she has

not spent a lot of time testifying

in adversarial proceedings is somehow relevant to her

credentials as

a geologist.

It is completely irrelevant.

What is relevant is

her professional

experience working

as a geologist.

Not time spent testifying.

As is evident from

her resume

and testimony, she

has over

10 years field

experience,

she

is

a registered geologist, and

she

was selected

by

her employer to train other regional geologists

in

the field

prior to

her most

recent

appointment to

a full-time training

position.

Respondent,

in

its response,

includes an absurd statement that Ms.

Nelson completely

misunderstood the site’s geology.

Ms.

Nelson thoroughly understands the site’s geology.

It is

Respondent’s geologist who has

never been to the site, and who

has never done

an

investigation

of the site.

He

admitted

at

hearing he was extrapolating information from the

neighboring RCS

site and applying

it to the Jersey site.

Ms.

Nelson

has

patiently and

painstakingly explained why such extrapolation

is

inappropriate

and downright wrong given the

field date

available for this site.

The field documentation,

dating back to

1973,

supports

Ms.

Nelson’s testimony.

It does

not support Respondent’s

proffered guesswork.

Complainant

has

set forth,

in great detail,

the evidence

fresented

in the record

and

at

hearing that serves

as the

basis for

its

Section

12(a)

and

12(d) allegations,

and has

argued

these allegations in

Sections

B through

H of its

original brief.

These

arguments will not be

repeated

here.

Complainant has

met its burden.

Respondent’s, case

is completely void

of any

evidence

that controverts Complainant’s evidence.

In

its

arguments,

Respondent relies solely

on the testimony of Complainant’s witnesses

that indicates

that,

due to

the fact

Respondent has

completely abdicated

its

responsibility to address groundwater exceedences at

the

landfill,

no

work has

been done to assess the exceedences.

Thus, other

sources have

not been

eliminated from the analysis.

Respondent conveniently,

in

its

argument, takes

Complainant’s

12

---

witnesses’ testimony out of context.

Both citations to the transcript,

that attributed to Ms.

Nelson

and the testimony attributed

to

Ms.

Munie,

are surrounded and qualified

by the

witnesses’ testimony that pursuant to the regulations,

particularly 35

III.

Adm.

Code 807.3 13

and 807.315, the landfill

cannot cause or threaten water pollution.

It is the responsibility of the

landfill to conduct proper assessments to ascertain the source of contamination.

Testimony of

Joyce Munie,

Tr. 40-47.

Despite permit

requirements applicable

to Jersey Sanitation

Landfill

for years, including

years

prior to the recent permit

appeal,

requiring Jersey to

perform an

assessment and

confirm the appropriateness of

its monitoring

plan,

the landfill has failed

to do

so.

The regulation found

at 35

III.

Adm.

Code 807.315, a Fart 807 provision,

is particularly

noteworthy at this juncture.

It states,

in pertinent

part:

Protection

of Waters of the

State

No

person shall cause

or allow the development or operation of a sanitary

landfill

unless the applicant

proves

to

the satisfaction of the Agency that no damage or

hazard will result to the waters of the

State

because of the development and

operation of the sanitary landfill.

Pursuant to this regulation,

as well as

Section

12(a) and 35

III. Adm.

Code

807.31 3,

Respondent must prove to the

Illinois

EPA that it is not existing

as a

hazard to

waters of the

State, which include groundwater,

or is

not otherwise

contaminating waters

of the State.

Based

on the evidence

presented at

hearing, groundwater sample results

have

indicated

exceedences

of the standard

since

1991

at

the

landfill.

The exceedences

have

increased

in

magnitude over

the years.

Respondent Jersey has failed to

comply with

all

permit requirements

designed to

address the groundwater issues

at

the landfill.

Respondent has

not disputed, nor has

it

presented

any evidence to

contradict Complainant’s

assertions, that

Respondent has

not

performed

a single assessment of the groundwater at the site.

Complainant has

presented

13

---

evidence that the groundwater at the

landfill

is

exceeding standards, the upgradient wells do

not

indicate exceedences

and

Respondent Jersey has

completely failed to

comply with

35

III.

Adm.

Code 807.315

and

permit conditions

requiring

it to

perform assessments

consistent with the

requirements of 35

Ill. Adm.

Code

807.315.

As a result, Jersey Sanitation

is in

violation of

Section

12(a)

and

12(d).

Complainant has

presented

detailed

evidence as

to why this landfill

does exist as

a water pollution hazard upon the

land

—

evidence

that has

been

in the hands of

Respondent since the day it purchased the

landfill,

if not before.

The

basic documentation was

generated

in

1973.

Respondent itself submitted the documentation

to the Illinois EFA.

Respondent makes

an

issue over the fact that Ms.

Munie

did

not testify regarding the

exceedence of groundwater standards at

the site,

and the issues regarding the landfill’s

monitoring

plan.

No

such testimony was

elicited from this witness,

by either Complainant or

Respondent.

She

was silent because she wasn’t asked.

She was identified to testify about

certain

given subject matter, and

her testimony was

kept within the disclosed

realm of topics.

Ms.

Nelson was

the regional geologist

assigned to the Jersey Sanitation

site, and thus

she was

the appropriate witness to

testify regarding groundwater issues

at the

site.

Respondent labels Ms.

Nelson’s testimony regarding

iron

levels at

the site as alarmist.

She

simply testified

regarding the levels

in the sample

results and testified

that the

results were

somewhat remarkable.

This testimony was

not alarmist.

It was

appropriate and

elicited as

testimony that would be

helpful to the trier of fact in

that it put the sample results into

perspective.

Count IV Permit Violations

1.

Respondent’s violation of its

permit requirement to

conform

its groundwater

monitoring wells and facilities to the approved monitoring

plan.

Complainant’s

presentation of evidence supporting this allegation, and its argument

relevant to this evidence,

appear in

its post-hearing

brief on

pages 86-88.

At hearing

and

in its

14

---

response

brief, Respondent has

not disputed

the allegation that it did

not conform its

groundwater monitoring wells

and facilities to

the approved

monitoring

plan,

and it has

not

presented

any evidence offered to

contradict the allegations.

Respondent has failed

to

plug well MW5.

MW5 is not included in

its current approved

monitoring plan.

Respondent has failed to

submit an application

for a supplemental permit

to

modify the groundwater monitoring

program

so as

to

provide for the maintenance of the MW5

well.

In

that

Respondent has failed to plug the well or submit

an application for modification

of

its monitoring

plan,

Respondent is in violation of Special Condition

13 of Fermit 1989-177-SF

and identical conditions

contained

in all

subsequent supplemental permits;

This violation has

continued for over 13 years.

Violation

of this permit special

condition

constitutes a violation

of

Section 21 (d)(1)

and

(2) and

Section 21(e),

415

ILCS

5/21 (d)(1),

(2) and

(2),

and 35

III. Adm.

Code 807.301

and

302.

2.

Respondent’s failure to

provide

a

narrative demonstration that

its

water

monitoring program

is capable of determining groundwater’ quality flowing onto

and

unaffected by the landfill,, assess current contribution of the existing

landfill

on groundwater quality and

determine

if a release to

groundwater is occurring

by

April

15, 1991.

Complainant’s

presentation of evidence supporting

the allegation that Respondent failed

to comply with

Special

Condition

11(b) of

Permit No.

1989-1 77-SP, and

Complainant’s

argument relevant to this evidence,

appear in Complainant’s

post-hearing brief on

pages 89-93.

At hearing

and

in

its

response brief,

Respondent has

not disputed

this allegation, and

it has

not

presented

any evidence

offered to

contradict the allegation.

Respondent Jersey Sanitation failed

to comply with

the requirements of Special

Condition

11(b) of Permit

No.

1989-177-SF,

from the time of the

initial

deadline of April

15,

1991

until

new water monitoring

program permit

requirements went

into effect on

February 8,

1993.

Respondent’s

failure to

comply with

Special

Condition

11(b) is a violation

of Section

21(d)(1) and

(2)

and

Section

21(e),

415

ILCS 5/21(d)(1),

(2) and

(e),

and

35

Ill.

Adm.

Code

15

---

807.301

and

302.

The initial violation occurred on April

15,

1991.

The continuing violation

of

the permit provision existed for 664 days.

3.

Respondent’s failure to obtain

a supplemental

permit to

conduct landscape waste

compost operations.

Complainant’s presentation

of evidence supporting the allegation

that Respondent failed

to obtain a supplemental permit to

conduct landscape waste compost operations, and

Complainant’s argument relevant to this evidence,

appear

in Complainant’s post-hearing

brief

as

Section

L.6 on

pages

93 to 95.

In its

reply brief,

on

page 8 and

9,

Respondent states that Pamela Shourd testified at

hearing that the composting was

done on farm property and not permitted

landfill

property.

It

was done as an accommodation to

customers.

Ms.

Shourd’s original claims that the landscape waste was not within the permit

boundary

were

made in

a letter to the Illinois

EFA dated

December 13,

1990,

and entered

in

this proceeding

as

Parties

Exhibit’ 11.

Upon receipt

of her claims that the landscape waste

was

not within the boundary, inspector Rich Johnson conducted

a re-inspection and

reviewed

documentation concerning the permit boundaries.

Upon re-inspection and

review of the

documentation,

he determined that the landscape waste was

indeed

partially within the

landfill

boundaries.

As

set forth

in

Complainant’s

post-hearing

brief, at the time the landscape waste was

observed at the property, the

landfill

operator told

the inspector that the landfill

had

been

receiving

weekly loads of landscape waste from the City of Jerseyville.

This is documented

in

the inspection

reports.

On

page

94 of Complainant’s post-hearing

brief,

an

excerpt from

the

January 23,

1991

inspection

report indicates that inspector Rich Johnson

reviewed

the landfill’s

permit

boundary drawings

and

determined that the area where the landscape waste was

stockpiled has

been

placed

in

part within the landfill

boundaries.

Landscape waste was

16

---

observed on

the landfill site

in August 1990,

January

1991

and

again

in

May of 1991,

a period

of

10

months.

On the occasion

of each inspection,

Respondent was told

it could

not accept

and

maintain waste on

the site

for composting without

a supplemental

permit.

Respondent,

in

its reply

brief,

makes that statement that

Mr.

Johnson’s determination

that the landscape waste was stockpiled

within permit boundaries

was “unsubstantiated”.

Respondents characterization is incorrect.

The inspector did

check his observations against

drawings

of the permit boundaries and found

that the waste was at

least partially within permit

boundaries.

In

addition,

the landfill

operator himself indicated

that the landfill was

accepting

the

waste

for composting.

No evidence has

been

presented that the waste was ever applied

to a

farm

field.

Respondent argues that Pamela

Shourd claims that the landscape waste was to

be

applied to adjacent farm

property.

As

documented

in the inspector’s report regarding

his

January 23,

1991

inspection,

at the time of the inspection,

the adjacent farm.field

mentioned

in

a letter from

Ms. Shourd

as

the location where the waste would

be applied, was in

a crop,

most

likely winter wheat.

In

that the field was in a

crop, waste could not be

incorporated

into the field

until the crop

was harvested.

At the time of the May 21,

1991

inspection, the inspector documented that the

landfill

operator informed

him

that the

landfill

was still

receiving an occasional

load of landscape waste

from the City of Jerseyville.

The operator told

him the

landfill

no

longer intended

to compost

landscape waste.

Nonetheless,

the inspector observed that the

landfill

appeared

to still

be

handling

the

City’s

landscape waste.

At the time of the inspection, the operator indicated that

one of the shareholders

had

removed some of the stockpiled landscape waste.

The operator

did

not know where the shareholder had

taken

it.

At the time of the inspection,

the

bed

of the

dump truck at

the site was full of tree

and shrub trimmings.

Evidence presented

by Complainant clearly shows that

the

landfill

accepted landfill

17

---

waste for composting, the landfill

did

not have a permit for composting

at the

time,

that

landscape waste was

being accepted from the City of Jerseyville for composting

and

stockpiled

at the landfill site within the permit boundaries.

No

evidence

has

been presented

by

Respondent that the waste was

ever applied to a farm field

at agronomic rates.

It is apparent

from the inspection

reports that one of the shareholders, John

Cronin, eventually gathered

up

the landscape waste stockpiled at the’ site and hauled

it off to some

unreported,

undisclosed

location.

Respondent’s

acceptance of landscape waste at

the landfill site was an

unpermitted

activity, and

thereby constituted

a violation of Section 21(d)(1) of the Act, 415

ILCS 5/21(d)(1).

The first violation was observed on

August 30,

1990.

The violation was continuing and on-

going

at least up until the time of the

May

21, 1991

inspection.

The violation continued

for 263

days.

4.

Respondent’s failure to comply with

Item

10

contained in Attachment A to

Permit

No.

1992-350-SP,

requirement that padlocked

protective

cover must

on exposed welt casings.

Complainant’s presentation

of evidence

supporting the allegation

that Respondent failed

to comply with

Item

10

of Attachment A of Permit

No. 1992-350-SF, and

Complainant’s

argument relevant to this evidence, appear in Complainant’s

post-hearing brief on

page 97.

At

hearing

and

in

its

response brief, Respondent has

not disputed this allegation, and it has

not

presented

any evidence offered to

contradict the allegation.

Illinois EPA inspector Charlie

King documented

his

observation that monitoring

well

Gi 04 was observed

unlocked at the time of the February 17,

1994 inspection.

Parties Exhibit

31, page 6 of the narrative and

photo No.

4 from

roIl #124, and

page

10 of the narrative, item

L.

Respondent failed

to

comply with

Item

10 of Attachment A of its permit at the time of the

February

17,

1994 inspection,

and thereby violated

Section 21(d)(1)

and

(2),

415 ILCS

5/21(d)(1),

(2),

and

35

III.

Adm.

Code 807.301

and 302.

This observation constituted

a single

18

---

occurrence of the violation.

5.

Respondent’s failure to

comply with Permit No.

1992-350-SP, Attachment A

Special

Conditions 5(a), 6(b), 8,

16, 20, 21

and 22.

Complainant’s presentation

of evidence supporting

the allegations that Respondent

failed to comply with

Permit No.

1992-350-SF, Attachment A Special

Conditions

5(a), 6(b), 8,

16,

20, 21

and

22, and

Complainant’s

argument relevant to this evidence, appear in

Complainant’s post-hearing brief on pages 97 through

102.

At hearing

and

in its response

brief, Respondent has not disputed these

allegations, and

it has

not presented

any evidence

offered to

contradict the allegations.

Respondent’s failure

to comply with

Permit No. 1992-350-SF, Attachment A Special

Conditions 5(a), 6(b), 8,

16,

20, 21

and 22

has resulted

in

continuing exceedences of

groundwater standards at the landfill, and water pollution.

Exceedences of the standards have

been detected

in sample results from

the landfill

since

1991.

The duration

of each

violation

is set forth

in Section

M.4,

pages

97 through

102,

of

Complainant’s post-hearing brief.

6.

The

Respondent’s violation

of Sections 21(d)

and 22.17,

415 ILCS 5/21(d)

and

22.17,

and 35 Ill. Adm.

Code 807524(a) with

respect to Permit

No.

1999-209-SP.

Complainant’s presentation

of evidence

supporting the allegations that Respondent

violated

Sections 21(d) and 22.17,

415

ILCS 5/21(d)

and

22.17,

and

35

III. Adm.

Code

807.524(a)

due to its failure

to comply with various

provisions of Fermit No.

1999-209-SF,

and

Complainant’s argument relevant to this evidence,

appear in

Complainant’s post-hearing

brief

as

Section

N

on

pages

102 through

104.

At

hearing and

in its

response

brief, Respondent has

not disputed

these allegations,

and

it has

not presented any

evidence offered to

contradict the

allegations.

As

stated

in Complainant’s post-hearing

brief regarding these allegations,

inspector,

Charlie

King’s observations of ponded

and standing water, gas releases

and gas odors,

19

---

crevices and

rills, dead and

stressed vegetation and a leachate pop-out at the time of the June

6,

2000 inspection

is documented

evidence

of Respondent’s failure to

comply with

Fermit No.

1999-209—SF

Special Condition C.5 and

paragraph

1(c) of

its

Post-Closure Care

Flan, and

thereby is evidence of Respondent’s

violation of Sections 21(d)(1) and

(2)

and Section

22.17 of

the Act, 415

ILCS 5/21(d)(1),(2) and 22.17,

and

35

III. Adm.

Code 807.524(a).

Count VII Closure Violations

Respondent’s failure to timely complete closure and

comply with closure

requirements.

Complainant’s

presentation of evidence

supporting the allegations that

Respondent

failed to timely complete closure

and comply with closure

requirements,

and

Complainant’s

argument relevant to

this evidence,

appear in Complainant’s

post-hearing brief as

Section

Q

on

pages 114

through

119.

At hearing

and

in

its response

brief, Respondent has

not disputed

these allegations, and

it has not presented

any evidence

offered

to contradict the allegations.

As stated

in

Complainant’s post-hearing

brief in regard

to these allegations:

It is documented

in

the report for the January 21/February 17,

1994 inspection

that the

time of the inspection,

Respondent Jersey Sanitation

had

not filed a

plat of the

landfill with the

Jersey County

Record of Deeds.

Parties

Exhibit 31,

page

12 of the narrative.

Parties

Exhibit

41

includes,

as Attachment

3,

documentation that a plat of the landfill was filed

with the Jersey

County Recorder of Deeds,

in

compliance with

closure requirements,

on January 31,

1997.

Respondent failed to

comply with

closure requirements requiring

it to

file a plat with the county

recorder in

a timely

manner, and

thereby violated

35

III.

Adm.

Code 807.318(c).

The first

documented violation

of this provision

occurred

at the time of the February

17,

1994 inspection.

The violation was ongoing until

January 31,

1997,

or a total of 1,078 days.

Respondent’s

Fermit No.

1999-209-SF,

issued October 5,

1999,

acknowledged receipt

of certification of completion of closure for the

landfill.

Respondent failed to

establish and

maintain

final cover at the

landfill

60 days after

20

---

ceasing

to accept waste, and

in fact did

not establish final cover until

October5,1999, and

thereby violated

Section

21(d)(1) and

(2)and 21(o)(6) of the

Act, 415

ILCS 2/21(d)(1),

(2),

and

21(o)(6),

and

35

III. Adm.

Code 807.305(c).

The first violation of these

provisions occurred

on

December

1,

1992.

These violations continued

until October 5,

1999,

a total of 2,497 days.

Respondent failed to take remedial

action to

abate gas after it ceased accepting waste

and as

it sought to close the landfill,

and thereby violated

35

III. Adm.

Code

807.381(b).

Detections of gas odor and

gas releases were documented

by inspectors at the time of the

November 18,

1998 and June

6,

2000 inspection.

Respondent failed to close the

landfill

in a manner that adequately controlled

post-

closure

releases to groundwater and

surface waters and to the atmosphere and

thereby

violated 35

III. Adm.

Code

807.502.

The first violation of this provision

occurred

on September

18,

1992.

The violations

continued

until

October 5,

1999,

a total of 2,557 days.

Count

VIII

Respondent’s violation

of open

burning provisions.

Complainant’s

presentation of evidence

supporting the allegations that

Respondent

conducted open burning

at

the landfill,

and Complainant’s

argument relevant to

this evidence,

appear

in

Complainant’s

post-hearing

brief as

Section

R on

pages

119 through

122.

Also

relevant to

these allegations

is the factual

evidence

presented

in Complainant’s brief in Section

L.6

on

pages

93 to 95.

Respondent contends,

based on

Pamela Shourd’s testimony at hearing,

that the

landscape waste fire at issue did

not occur on

any part of the permitted

landfill.

Respondent

acknowledges that the Illinois

EPA inspector who observed

the burning

material

disagrees with

Ms.

Shourd’s assertion,

and

then

Respondent goes

on

to state that the inspector has

no

basis

to

believe

he

had

a better understanding

of the permit boundaries

than

Ms. Shourd.

As

noted

in

Section

L.6,

upon receipt of

Ms.

Shourd’s

letter, dated

December 13,

1990,

21

---

and entered

in this proceeding

as

Parties

Exhibit 11,

upon r~ceivingher claims that the

landscape waste was

not within the boundary, inspector Rich

Johnson, conducted a re-

inspection and

reviewed

documentation concerning the permit

boundaries.

Upon re-inspection

and review of the documentation,

he determined that the landscape waste was

indeed partially

within the landfill boundaries.

The waste that was

burning was

landscape waste that Respondent has admitted to

accepting

and

receiving at the

landfill

with the intent of conducting

a composting

operation.

The

landscape waste was

being

delivered to the

landfill

by the City of Jerseyville.

The waste was

being

stockpiled

at the landfill as the

landfill

explored the

means

by which

it would

conduct

the

compost operation.

It was waste accepted

by the

landfill,

under control of the

landfill

and

stockpiled by

the landfill.

As stated

in Complainant’s original

brief,

the landfill operator could not

provide the Illinois EPA

inspector with

any details as to

why the waste was on fire.

However,

the operator was

attempting

to extinguish

the fire by placing

soil on

it.

Smoke

continued

to

be

emitted

from the landscape waste pile while the inspector was

on

site.

Respondent caused or allowed open

burning to

occur

at. the landfill

at

the time of,the

August 30,

1990 inspection,

and thereby caused, threatened

or allowed the discharge of

contaminates

into the environment, in violation of Section

9(a) and

Section

21(o)(4) of the Act,

415

ILCS 5/9(a) and

21 (o)(4).

Respondent caused or allowed the open

burning

of waste

not

exempt from regulation,

in violation

of Section 9(c) of the Act, 415

ILCS 5/9(c),

and 35

III.

Adm.

Code 237.102.

Previously adiudicated violations

Respondent’s claim that Complainant cannot seek enforcement regarding violations

cited in January23, 1991 inspection

report

that were

not the

subject of the

March 21,

1991 administrative citation.

On

page 9 of its reply brief, Respondent makes the claim that Complainant cannot seek

enforcement of violations

cited

in the inspector’s report for his

January

23,

1991

inspection

in

22

---

this proceeding, that were not the subject of the March

21,

1991

administrative proceeding.

Two violations were

cited in the March 21,

1991

administrative citation.

Complainant

acknowledged these two violations

in

its original brief, as follows:

On

page 75 of the brief:

On

March 21,

1991, the

Illinois

EPA filed an

administrative

citation against Jersey Sanitation.

Included

in the allegations was violation

of Section 21 (p)(2)

of the Act,

Ill.

Rev.

Stat.

1989,

ch.

111

~

par. l021(p)(2).

Violation

of what

in

1991

was

Section

21(p)(2), was

cited in

the second

amended

complaint of the instant

action as Section

21(o)(2),

415 ILCS 5/21(o)(2).

The basis of the allegation cited in

the March 21,

1991

administrative

citation

was the January 23,1991

inspection

conducted by

Rich

Johnson.

The report for that

inspection

is included in

the record

of this proceeding as Parties

Exhibit

10.

Respondent Jersey

Sanitation Corporation

did not file a Petition for Review in response

to the administrative

citation, and

paid the penalty demanded

in the citation

on April 29,

1991.

Parties Exhibits

11,

12,

13,

14,

16

and

17.

Given

that the January 23,

1991 violationof Section 21(o)(2)

was

satisfied with

payment of administrative citation

penalty, Complainant is not seeking

relief for

that allegation

herein.

However, evidence of the violation

is being

brought forth here

as

support

for the Complainant’s allegation that subsequent violations

of Section

21 (o)(2) were ongoing

and repeat

violations.

On page 106

of the

brief:

On

March

21,

1991, the

Illinois EPA filed

an

administrative

citation

against Jersey Sanitation

based on the

Illinois

EFA’s

inspectors’ observations

at the

time of the January 23,

1991

inspection.

An allegation

of uncovered

refuse was included

among the violations

cited

in the administrative

citation.

The report for that inspection

is

included

in

the record

of this proceeding as

Farties

Exhibit

10.

Respondent Jersey Sanitation

Corporation did

not file

a Petition for Review in response to the administrative

citation, and

paid

the penalty demanded

in the citation

on April

29’,

1991.

Parties

Exhibits

11,

12,

13,

14,

16

and

17.

Given

that violation

of uncovered

refuse at the time of the January 23,

1991

inspection

was

23

---

satisfied

by payment of the civil penalty assessed pursuant to the previous administrative

citation, Complainant is not seeking relief for that allegation herein.

However, evidence of the

violation is being

brought forth

as support for the Complainant’s

allegation that subsequent

violations of daily cover provisions were ongoing

and

repeat violations.

Section 31.1

of the Act, 415 ILCS 5/31.1, states,

in

pertinent part:

(a)

The prohibitions specified

in subsection

(o) and

(p) of Section

21

of this Act

shall be enforceable either by

administrative citation

under this Section or as

otherwise

provided by this Act.

Respondent states in

its reply

brief that “As a

matter of law, the IEFA cannot proceed

both

of (sic) the basis

of administrative citation

and

straight enforcement.

.

.“

Respondent cites

no

law

in

support of its argument.

Complainant

has

not and would

not

proceed

in this enforcement action

regarding the

same violations

cited

in the administrative citation.

However,

it is proceeding

regarding other

violations cited

in the January 23,

1991

inspection report.

The Act clearly states that Section

21

subsection

(o)

and

(p) violations

can be

enforced by either administrative

citation or as

otherwise provided

by the Act.

Contrary

to

Respondent’s bold

statement,

there

is

no basis

in

law for Respondent’s proposition that Complainant cannot

proceed

regarding violations

that

have

not been the subject of past adjudication.

Advantage Gained

Due to

Non-Compliance

At hearing and

in

its brief,

Complainant presented testimony and

argument regarding

a

benefit calculation conducted

by Blake

Harris, an accountant with the

Illinois

EPA’s Waste

Reduction

and Compliance

Section,

Bureau of Land, that showed the advantage Respondent

Jersey Sanitation Landfill gained from its non-compliance with

financial assurance

requirements.

The benefit

realized by Respondent was

calculated

to be

$25,233.53.

Citations

to testimony

and documents

that provided

an explanation of and

basis for the calculation

24

---

appear on page

113 of Complainant’s post-hearing

brief.

Respondent,

in

its response brief,

claims that Complainant’s calculations

were

in error

because

it

should not have assumed that Jersey Sanitation Corporation had

sufficient

resources to

meet its financial assurance requirements.

Respondent,

in this statement,

reveals

is

own fundamental error in judgment in

evaluating this testimony.

The calculation,

as set forth

in the brief and

by Mr.

Harris at

hearing,

is a calculation to

put into dollars and

cents the unfair advantage

Jersey Sanitation reaped for

itself by not complying with financial assurance

requirements compared

to

landfills that

complied with the regulations.

Respondent Jersey Sanitation does

not have a

choice as

to

•

whether it

complies with the regulations or not.

By law,

it must comply.

The calculation

shows

the advantage

it gained

by its non-compliance.

Secondly,

Respondent claims,

in its argument regarding Jersey Sanitation’s sufficiency

of resources, that “the unrebutted

evidence

in this case

reveals that every cent of money that

came into the landfill,

at

least from

1989 on, was put toward

paying not

only for proper landfill.

•

operation,

but also tofund

the closure/post-closure account.”

Complainant disputes that such

evidence is unrebutted.

There is no financial

documentation of Jersey Sanitation Corporation

in

the

record.

There

is a single

statement made

by Pamela Shourd ‘that every cent went

into the

landfill.

There is also

plenty of evidence

in the

record

of business

conducted by these

shareholders

on the remainder of the 200 acre

property.

The subject

landfill took up

10

of the

200

acres.

That

left plenty of room for the development of the RCS

Landfill

immediately south

of the Jersey Sanitation

Landfill.

It’s important to

remember, as

Charlie

King testified, that the Jersey Sanitation

Landfill

did

not show signs

of significant compliance with cover requirements,

including the

control

of

leachate

and gas,

until

1995 when

RCS took over operation

of the Jersey

Sanitation Landfill.

As the exhibits in

this case

show, the uncovered

refuse, leachate

seeps and flows

and

25

---

erosion

problems at this

landfill

continued sorely unresolved

at the time of the

1994 inspections.

In

1994,

leachate flows were still

reaching Sandy Creek.

Respondent states

on page

16 of its response

brief “It is simply absurd

to suggest that

Jersey Sanitation reaped any economic benefit through this ordeal.

Certainly that is not the

case with the current shareholders,

whose only

benefit, if it could

be called

such,

is that they no

longer have to

live next to a public health hazard.”

The shareholders

of Jersey Sanitation Corporation ran their

own

public health hazard,

when they owned

and controlled

Jersey Sanitation Corporation

Landfill,

from 1989 through

1994.

They may not have found

it offensive

because it was their own nuisance,

not someone

else’s.

Inspectors documented

uncovered refuse,

leachate flows and

seeps,

leachate flowing

directly into Sandy

Creek,

uncontrolled gas,’ deep gullies where cover existed

on the

landfill

and

uncontrolled

surface drainage time after time after time.

Respondent contends that ,Mr.

Harris

is

not an accountant because

he

has not sat for

the certified public accountant’s

examination.

Mr.

Harris is identified

as an accountant.

His title

with

the Illinois

EPA is “accountant”.

His credentials were entered

in this proceeding as

Complainant’s

Exhibit 3 and the list

of credentials

speaks for itself.

Respondent also takes

issue with

Complainant’s

reliance on the $9,000

cost figured for

assessment that appeared

in one of Respondent’s

permit

applications.

As

is obvious

from the

record

in this proceeding, Respondent was

under an obligation for many years prior to the

permit appeal to

conduct

a groundwater assessment.

The landfill monitoring wells were

showing

exceedences,

the upgradient wells were not showing

exceedences, the

Illinois

EPA

had

repeatedly included permit conditions

in the permit for the landfill

to

conduct an

evaluation

of

its monitoring

plan

due to

the long-standing

questions regarding G103, and the level of

exceedences was increasing.

Pursuant to 35

III.

Adm.

Code 807.315

and the landfill’s

permit

conditions,

as assessment was to

be done.

The landfill

has never done a groundwater

26

---

assessment.

Thus,

the $9,000 figure is certainly a legitimate

part of any cost savings

calculation.

RCS

Landfill

Respondent claims that Complainant is attempting

to make

RCS Landfill

a

party to this

proceeding.

Nothing

is further from the truth.

Respondent has

now offered a

new exhibit with

its

response

brief, which was

not

properly admitted

at

hearing.

No foundation

has been

laid for this exhibit and the Complainant

has

not had

a chance to

cross.

Complainant objects

to

the exhibit.

However, at this

late juncture,

Respondent,

with this exhibit

and his

own argument,

lays

out the nature

of RCS Landfill.

Complainant fully explains the relevancy of RCS Landfill

in the first section of this brief.

RCS Landfill

is only relevant to

Respondent’s

claims of innocence,

inability to pay,

and

Respondent’s

mischaracterization that this Respondent’s sole

interest was to

abate a

neighboring

nuisance.

Respondent obtained the Jersey Sanitation

Landfill

site in

a complete

property

parcel of 200 acres.

While

the original Jersey Sanitation Landfill

was existing

on the

land with

Ieachate flows, exposed

refuse, refuse in standing water, deep gullies

in the

landfill

cover, and

groundwater sample

results that showed exceedences of groundwater standards for

years,

RCS Landfill was being

developed

500 feet south

of the existing landfill.

It took Jersey

Sanitation Corporation seven years, from the date Jersey Sanitation

Landfill

stopped

accepting

waste to

certify the landfill closed.

It took the

landfill

nearly nine years to obtain county siting

approval for the landfill’s

overheight condition.

While Jersey Sanitation Corporation

Landfill

existed

on the

land as a

source of water pollution and

a water pollution hazard,

RCS

Landfill

was

being

developed

500 feet

away.

It wasn’t until

RCS Landfill

took over operation

of Jersey

Sanitation

Landfill,

did the

landfill operator become promptly and

properly responsive to

27

---

compliance problems.

Reply to

Respondent’s

Discussion on the History of Jersey Sanitation

Corporation

Complainant, at

hearing,

objected to

all testimony

of Pamela Shourd concerning dates

prior to the date of the first alleged violation

that is the subject of this enforcement action, which

is August

1990.

Complainant also

objected to

all testimony elicited from

Pamela Shourd

regarding the previous owner.

The testimony is irrelevant to this action.

The experiences Ms.

Shourd

had with

the landfill prior to the time she, with other shareholders, bought the

landfill,

are irrelevant to

the violations alleged

‘in the complaint.

And, the reasons

she purchased the

landfill

are irrelevant.

What is relevant is the

black and white fact that she and

the other

shareholders

purchased the landfill and took

control of it in

November

1989,

and from

that day

forward were responsible for the condition of the landfill.

No one forced the current shareholders of Jersey Sanitation Corporation to

buy the

Jersey Sanitation Corporation Landfill.

In fact, as

is

cited

in the testimony, the

Illinois EPA

warned

the neighbors not

to

purchase the property due to the challenges it presented.

Contrary

to

Respondent’s

claim that

it purchased the

landfill

to abate

the nuisance, what in fact

happened

is that

Respondent maintained

its

own

nuisance

at this site for six years

after

purchasing the site.

But the nuisance the neighbors

now owned

and

controlled wasn’t nearly as

offensive to them,

because now it was

their nuisance.

They weren’t about to

complain about

themselves.

But non-shareholder neighbors complained about the landfill after the current

shareholders of Jersey

Sanitation Corporation took control

of the property.

A list of specific

complaints

submitted

to

the Illinois

EPA appears on

page 2 of the narrative included with

the

Illinois

EPA report for the August 30,

1990 inspection.

Parties

Exhibit

7.

What comes to

light from the

record

in this matter is that these

neighbors saw a

business opportunity in

the

landfill

property.

It is obvious from

the record that the Jersey

Sanitation Corporation Landfill was a

landfill developed

out of need.

It was originally

developed

28

---

to respond to

an emergency need for landfill

capacity.

It continued

to service the City of

Jerseyville.

The City of Jerseyville was

a client of Respondent while

it was

operating

the Jersey

Sanitation Corporation

Landfill.

When Jersey Sanitation

Corporation

Landfill closed,

it

closed

with yet viable

clientele.

A landfill

right

next door could service the same clientele.

A properly

developed

landfill with

an established,

ready clientele very well might be

profitable, particularly

if

a

large landfill

company,

such as Allied, was willing

to buy it.

In its

reply brief, Respondent spends

a great deal of time reviewing

Ms.

Shourd’s

testimony about

her memory of the condition

of the landfill

before she purchased

it.

In

its

brief,

Respondent admits that Ms.

Shourd was advised

by the

Illinois

EPA

not to purchase the

landfill.

Respondent notes that the former owner was issued

an administrative citation.

Mr.

Shourd

testified that

at the time the

Illinois

EPA attempted to

discourage her from

purchasing the

landfill, the

Illinois EPA inspector advised her that the agency “would

soon be cracking down

on

the current owner of the landfill,” in

her words.

Tr.

at 361,

Complainant’s post-hearing

brief

page

133.

Ms.

Shourd testified

at

hearing that

the current shareholders began

considering

purchase of the landfill when they heard the former owner wanted to

sell

it.

Mr. Johnson

put the

landfill

up for sale after he had

received

an administrative

citation.

The first action taken against Jersey Sanitation

Corporation also was

an administrative

citation.

Evidence

of the citation

is

included

in the

record

as Parties

Exhibits 11,

12,

13,

14,

16

and

17.

In

that conditions

of non-compliance persisted

at

the landfill, the

next action taken

against Respondent was an

enforcement action.

The Illinois

EPA had been

positioned

to proceed

against the former owner.

Ms.

Shourd

was advised that the

Illinois EPA would

be

proceeding

against the former owner.

Both

Ms.

Shourd and

the Illinois

EPA possessed documentation of and field observations regarding the

challenges presented

by this landfill.

And yet the shareholders

purchased

it anyway.

They

29

---

purchased

it with

no equipment and

insufficient money to purchase

equipment much less

properly close the landfill.

Ms.

Shourd

is quoted

in

Respondent’s

response

brief as follows:

“we

didn’t really have the

money to just—just be able to

buy equipment and

bring it

in and

close it up.

We

had

to operate it for awhile

to

try and

generate enough

income to

shut it down.”

Tr. 346.

Also in

Respondent’s brief

is

a statement that clearly shows that the Respondent

corporation did

not have a working

knowledge of the management of a landfill when

it took

control

of Jersey Sanitation Landfill.

On

page 4 of the brief,

it states:

During the following

two

years, the

new stockholders themselves learned to operate the

land,

and

hired (and fired)

numerous employees

in

an effort to

adequately staff the facility.

Tr. 347-349.

Respondent Jersey Sanitation

Landfill did

not truly start the process

of “shutting down”

Jersey Sanitation

Landfill

until

1995.

In

1994,

Illinois

EPA inspectors observed significant

cover

compliance problems

at the

landfill.

In

1995, as

Charlie

King testified

at hearing, significant

improvement was achieved

with

RCS,

Inc.

took over operation

of the landfill.

The groundwater

investigation for the development of RCS,

Inc.

was conducted

in

1992,

according

to

testimony

elicited from Respondent’s groundwater expert.

In

1992,

at a time when Jersey Sanitation

Corporation should

have

been completing closure at the Jersey Sanitation Corporation

Landfill,

Respondent’s groundwater expert was

conducting

a groundwater investigation at the site of

what today

is the RCS,

Inc.

landfill.

RCS,

Inc. was

in operation

with a

certified operator by

1995, who

then began

caring for both landfills.

Also on

page four of

Respondent’s response brief, Respondent indicates

Jersey

Sanitation Corporation

had ten pieces of equipment

by 1992.

The Respondent states: “By the

time the facility was closed

in

1992, the

landfill

had

purchased ten pieces of equipment, and

was

leasing another;

the purpose

of all

of the equipment was “in

order

to

compact trash,

haul

dirt over there,

and

cover it

up

and compact the dirt.”

If the landfill

was closing, why would the

shareholders be

continuing to

accumulate equipment?

Where was

it being

used to

compact

30

---

trash and

haul dirt,

if the landfill was closed?

And

if all this equipment was dedicated solely to

the Jersey Sanitation Corporation

Landfill, why would the

landfill

continue to

experience the

exposed

refuse problems,

leachate seep and

flow issues,

and

deep gullies

in the cover that are

evident in the photos

in the 1992 and

1994 inspection

reports?

In

its response

brief, Respondent claims, on

page 4,

that “After the

landfill quit

accepting

trash in September

1992,

the revenue stream to pay for the improvements also ceased.

During

the time we accepted waste, we

paid

into the closure/post-closure

fund

and tried

to have the

equipment and

dirt we

needed

to cover up

the

landfill.

From that

point on, we had

noincome.”

Tr.

352-353.

Virtually no profit was realized

by the shareholders through the efforts, aside from

a peace of mind

from knowing

that the terrible nuisance located

next to their properties was

abated

—

“every cent that came into

that landfill went into

either the post-closure or closure/post

closure fund

or

into equipment

to operate the

landfill and

to cover it up and

close it.”

As

stated

in Complainant’s ‘post-hearing brief,

it is obvious from

the

record

of this.

proceeding that early on

Ms.

Shourd and

her fellow shareholders

took advantage of corporate

liability shields, when they parceled the original 200

acres and

created

CRS, Partnership,

as

Ms.

Shourd herself described

in

Parties Exhibit

11,

page 2 of her December 13,

1990 letter.

All of this is masked

by a claim that the shareholders “abated a terrible

nuisance”.

No,

the

shareholders merely

converted the nuisance

into their own

nuisance,

which amazingly was

not

offensive to them.

Respondent’s

brief

is full

of accusations

that the Illinois

EPA was hostile to Jersey

Sanitation Corporation.

The best defense

is always a

good offense.

It is

apparent that the

Illinois EPA was not the hostile party.

The true hostile,

uncooperative

party has

been Jersey

Sanitation

Corporation.

And for good reason.

Hostility keeps

everyone at a distance from

each

other.

The Jersey

Sanitation Corporation

had

business interests

to

protect,

and business

opportunities

to

pursue.

Keeping the communications hostile maintained distance and tactics

of

31

---

delay allowed one

landfill

to

be developed while

the other landfill stood

in non-compliance.

Most egregious,

it allowed the shareholders, to

date, to avoid all

costs associated with

addressing the groundwater problems at

Jersey Sanitation

Corporation landfill.

Hostility,

poor

communications, delay

—

it

all worked

in the shareholders’ favor.

As set

forth

in Complainant’s post-hearing

brief on page

134,

Ms.

Shourd’s

own belief

system

brought a demeanor of conflict

and

resistance

into efforts to

bring the subject

site

into

compliance.

Respondent Jersey Sanitation Corporation brought the Jersey

Sanitation Landfill into

compliance when

it was convenient for them to do so.

They completed compliance groundwork

at Jersey Sanitation

Landfill once

RCS,

Inc.

was available to do the work in

1995,

despite the

fact they allegedly had

11

pieces equipment available in

1992.

They obtained siting

approval

almost nine years after they were originally

cited for non-compliance.

They obtained

certification of closure seven years after they

ceased accepting waste.

It obviously has

never

been convenient for the shareholders to address groundwater problems at Jersey Sanitation

Corporation

landfill

—

problems that have

been aggravated by the fact the exposed refuse,

gullying, and

surface water drainage problems,

as well as

leachate

and gas

production were

allowed to

continue.

On

pages

5 and

6 of its

response brief,

Respondent appears to

be

making the argument

that

at the time the

Illinois EPA acknowledged receipt of

Jersey Sanitation Corporation’s

certification of completion of closure, the

landfill

was in

compliance with

all

permit, regulatory

and

statutory requirements.

Whatever Respondent’s statement is

supposed

to

mean or infer,

the truth is that a certification of closure

merely certifies exactly that which

is stated

on page 6

of Parties

Exhibit 41, the landfill’s Affidavit for

Certification of Closure, dated

June

7,

1999.

The

narrative

included with the affidavit, starting on

page

13

of the exhibit,

indicates

that although

final cover work was completed,

surveyed, tested and

certified

at

the

landfill

in

September of

32

---

1994,

a delay was

caused due to the

issue of the final elevation

and contours

of the

landfill.

Respondent did

not obtain siting

approval for the overheight conditions

at the

landfill

until

March

8,

1999.

As stated

in the affidavit of certification of closure, the subject matter of the certification

is the establishment of the dirt and vegetative final cover,

in compliance with

regulations, and

confirmation of final

contours.

Respondent cites the case of

Bradd

v.

Illinois EPA,

FCB

90-1 73

(May

9,

1991),

and

35

Ill. Adm.

Code 807.508

in support of

its statement

on page 6 that

in

granting that

it

is believed

Respondent is referencing

the fact the

Illinois

EPA

acknowledged a

closure date

of September

30,

1994 for the subject landfill,

of course, the

IEPA

acknowledged, both

as a matter

of fact

and of

law, that the landfill was in

compliance with all such

requirements as of that September

30,

1994.

What the Illinois

EPA actually did

in the

1999 supplemental permit, which also

acknowledged certification of closure, was approve the landfill’s groundwater monitoring plan

L

with

conditions.

In

Bradd,

Mr.

Bradd’s certification

of closure was denied for five reasons, one of which

was his failure to

submit a

permit application

assessing the current groundwater conditions at

his site and

proposing an

adequate

groundwater monitoring

program.

Bradd

v.

Illinois EPA,

FCB 90-1 73

(May 9,

1991),

slip op

at

3.

The condition

requiring that

Mr.

Bradd

submit the

assessment and

program

plan was

special condition

15(b) of his permit.

The

Board

held:

“Section

40(a)(a) of the Act

(III.

Rev.

Stat.

1989,

ch

111

~/2

par.

1 040(a)(1))

provides, “If the

Agency refuses to grant or grants

with

conditions a permit under Section 39

of this Act, the

applicant may,

within

35

days, petition for a hearing before the

Board

to contest the decision of

the Agency.” (Emphasis added)

(see also 35

III.

Adm.

Code

105.102(a)(2)).

Because

Mr.

Bradd

never appealed

Special

Condition

15(b) of Supplemental

Permit

No. 1988-248-SP or the

33

---

Agency’s April 6,

1989

denial of his

proposed groundwater monitoring

program within the above

statutory time frame,

he has

waived any objection to the Agency’s imposition

of Special

Condition

15(b) and

its denial

of his

proposed groundwater monitoring

program

the fact

that Special

Condition 15(b)

of Supplemental

Permit 1988-248-SF

had

not been satisfied was

a

sufficient basis for the Agency to

deny Mr.

Bradd’s Affidavit for

Certification

of Closure and

not

issue

a Certificate of Closure for the landfill.

Bradd,

slip

op at 7-8.

The

Bradd

case does

not stand

for the proposition that issuance

of Certification of

Closure constitutes

acknowledgment by

the

Illinois EPA that a landfill is

in

compliance with all

permit, regulatory and

statutory requirements.

The case upheld

the Illinois EPA’s denial of a

Certificate of Closure when

a landfill failed

to meet a special condition

requiring

submission

of

an assessment

and acceptable

groundwater monitoring

plan;

This does not preclude the

Illinois

EPA,

in

its discretion, from approving a groundwater monitoring

plan with conditions

rather than

denying the plan altogether.

In

the case of Jersey Sanitation Corporation

Landfill,

the

Illinois

EPA approved the landfill’s monitoring

plan with

conditions.

Contrary

to

the characterization

made

by Respondent on

page 5 of

its

response brief,

that the Illinois

EPA’s October 5,

1999 letter (which

is actually the issuance of the

1999

supplemental permit) acknowledged compliance with all

permit, regulatory and statutory

requirements,

nothing

in the October 5,

1999 document indicated

any such thing.

The

document

is entered

in

the

record

as

Farties

Exhibit 42.

Respondent concludes

its “history” section of

its

brief by again

characterizing testimony

Complainant has

elicited from

groundwater expert witnesses regarding recommended methods

to

address the exceedences of groundwater standards

at this landfill, as the “stricken

conditions”.

Complainant

has elicited

testimony from

groundwater experts

as to

what actions

should

be taken, given

the current permit provisions,

to address groundwater exceedences at

the

site.

Complainant,

in its

prayer for relief,

has asked the

Board

to order

the Respondent to

34

---

comply with

its existing permit.

Respondent’s

insistence on

continually referencing

the “stricken

conditions”

is an argument manufactured to divert attention from and

aggravate Complainant’s

efforts to

meet its objective of obtaining compliance at the subject facility.

Procedural Objections

Respondent has

devoted three and

a half pages of

its 23

page response brief to

responding to Complainants procedural

objections.

Respondent claims Complainant has overstated

its

objections, to create a sideshow to

divert attention from what Respondent labels Complainant’s weak groundwater case.

There is nothing weak about the People’s groundwater case.

In

addition

to the fact

evidence presented

by Complainant strongly supports the allegations and

requested

remedy,

Respondent has

completely and totally failed

to controvert the evidence.

The only thing

Respondent offers

is testimony

regarding the Respondent’s own abdication of its responsibility

to address groundwater exceedences

at the site,

and

it does so by taking

the testimony

completely out of context.

In

its

response brief, Respondent continues to

argue about Complainant’s Exhibit

16

and 20,

and

Ms.

Nelson’s

rebuttal testimony.

As

has been

argued

ad nauseam

in

this

matter, it

is Complainant’s position that no testimony,

and

no exhibit, provided

to

Respondent constituted

a

new or surprise piece of evidence,

or new or surprise opinion.

Complainant’s

Exhibits

16 and

20,

as established

in the foundation testimony

elicited regarding these

exhibits, are simply a

tabulation

and summarization of the factual

evidence.

The fact that it was

prepared

by Ms.

Nelson

relatively close

in time to the date

of hearing

proves

nothing other than these exhibits

are

exactly what

Complainant claims they are

—

a tabulation

and

summarization

of data,

and

for

that

matter,

it’s a tabulation

of the Respondent’s

own data.

The foundation laid for these

exhibits speaks for itself.

Later testimony elicited from

Karen

Nelson

upon rebuttal, was

truly

rebuttal testimony and

not

a new opinion.

She was

responding

to

Respondent’s

witness’

35

---

testimony.

Respondent,

on

page 21

of its brief,

complains that Complainant received

an

accommodation of time to

depose the two

new witnesses

Respondent identified

the

night

before the continuance of the hearing,

and

Respondent was not given the same

opportunity

upon production

of Ms.

Nelson’s “new”

opinion.

First,

Respondent never asked for such

accommodation.

Second,

Ms.

Nelson’s testimony

on the day the hearing was

continued was

rebuttal

testimony.

If Respondent is referring to

Exhibits

16 and

20

again, Respondent was

granted

a continuance with

regard to the two exhibits and

never requested a deposition.

Complainant’s request for attorney’s fees

and

costs

As set forth specifically

in the various

sections of this brief and

Complainant’s

original

post-hearing brief,

many of the violations that are

the subject of this action were

repeated

violations.

The record

in this proceeding

clearly shows

that the Respondent received notice

of

the violations and

had

an

opportunity to

correct the violations.

In

many instances

it failed to do

so.

In

some instances,

it failed

to

do so for years.

The ongoing violations were

knowing

and

willful violations of the Act, pertinent regulations

and

applicable

permit conditions.

Complainant

hereby submits the affidavit of Jane

E.

McBride,

in support of

its

request

for attorney fees.

Complainant seeks

attorney fees at

a rate of $150

per hour for the

154 hours

devoted

to the enforcement of this matter.

The total amount requested

is $24,100.00.

Conclusion

As stated

in

Complainant’s original

post-hearing

brief, Complainant

respectfully requests

that the Board:

A.

Find that the Respondent has violated the Act and the Board’s

regulations

as

set forth herein.

B.

Order the Respondent to cease

and desist

from

all

violations of the Act

and the Board’s regulations,

and specifically,

consistent with the

requirements of Permit No. 1999-209-SF,

order

Respondent to

perform a

trend

analysis of groundwater sample

results,

submit a groundwater

36

---

assessment plan

(to include an evaluation of its current monitoring

plan

and

the appropriateness of G103 as

an

upgradient well) to the

Illinois

EFA for approval and

initiate implementation

of that plan within 30 days

of approval by the Illinois EPA, and,

if necessary,

submit a

corrective

action/remediation

plan to the Illinois

EPA for approval and

commence

implementation

of the corrective action

plan within

30

days of approval

by

the Illinois EPA.

C.

Order the Respondent to comply with its

permit and all

conditions

contained therein,

including the requirement to

submit a biennial revision

to

its cost estimates.

Order the Respondent to

submit a biennial

revision to

its cost estimated

within 60 days of the date of the Board’s

order.

D.

Assess a civil penalty of $65,000

against the Respondent.

E.

Award

Complainant costs

and

reasonable attorney fees

in the amount of

$24,100.00.

F.

Grant such other relief as

the Board

may deem

appropriate.

Respectfully submitted,

PEOPLE OF THE STATE

OF ILLINOIS,

ex

reL

LISA MAD IGAN, Attorney General

of the

State of Illinois

MATTHEW

J.

DUNN, Chief

Environmental

Enforcement Division

BY:

~

/~

JANE E.

MCBRIDE

Assistant Attorney General

500

South

Second Street

Springfield,

Illinois

62706

(217)

782-9031

37

---

STATE OF ILLINOIS

)

SS

COUNTY OF SANGAMON

AFFIDAVIT

I, JANE MCBRIDE, after being duly sworn

and upon

oath, state

as follows:

1.

I am the Assistant Attorney General representing

the

Complainant in

People

v.

Jersey Sanitation

Corporation,

Case

No.

PCB 97-2.

2.

I

have

served

as an Assistant Attorney General

with the

Illinois Attorney

General’s Office for over seven years.

The customary value placed

upon my services by the

Illinois Attorney General’s office

and

pursuant to

People

v.

ESG

Watts,

Inc.,

FOB

01-1 67 (April

1,

2004),

slip op

at 2,

is $150.00 per hour.

3.

I

have expended well

in excess

of 154

hours of time

on the case of

People

v.

Jersey Sanitation Corporation,

Case

No.

PCB 97-2.

For

purposes of recouping attorney’s fees

and

costs,

I attest that

I

have spent 154

hours on this

matter.

Further, affiant sayeth

not.

c~

2~

~

(1;

,.-“

JANE

E.

MCBRIDE

Subscjjbed and

sworn,,t

before me

this

,W/7

day

of / /p~

,

2004.

J/Q.

~

NOTARY”PUBLIC

.

~

PEGGY J.

POIIEVIN’r

~ NOTARY

PUBLIC, STATE

OF 1LLINOIS

1MIS

~~16’2

006